117 Harv. L. Rev. 1015 Harvard Law Review

February, 2004

Article

*1015 DESTABILIZATION RIGHTS: HOW PUBLIC LAW LITIGATION SUCCEEDS

Charles F. Sabel, William H. Simon [FNa1]

Copyright © 2004 Harvard Law Review Association; Charles F. Sabel; William H.

Simon

TABLE OF CONTENTS I. Introduction ................................................... 1016 II. The Protean Persistence of Public Law Litigation .............. 1021 A. Schools ...................................................... 1022 B. Mental Health ................................................ 1029 C. Prisons ...................................................... 1034 D. Police Abuse ................................................. 1043 E. Housing ...................................................... 1047 F. Conclusion ................................................... 1052 III. Public Law Litigation as Destabilization Rights Enforcement .. 1053 A. Right and Remedy ............................................. 1053 B. The Destabilization Theme in Private Law Litigation .......... 1056 1. Precedent and Polycentricity ............................... 1057 2. The Destabilization Aspect of Common Law Regulation ........ 1059 C. Destabilization Rights ....................................... 1062 1. The Prima Facie Case ....................................... 1062 2. Remedy: The Experimentalist Tendency ....................... 1067 D. Destabilization Effects ...................................... 1073 1. The Veil Effect ............................................ 1074 2. The Status Quo Effect ...................................... 1075 3. The Deliberation Effect .................................... 1076 4. The Publicity Effect ....................................... 1077 5. The Stakeholder Effects .................................... 1077 6. The Web Effect ............................................. 1080 IV. The Experimentalist Approach and Doctrinal Issues ............. 1082 A. Remedial Discretion .......................................... 1082 B. Separation of Powers ......................................... 1090 C. The Problem of Attribution ................................... 1095 D. The Problem of Interest Representation ....................... 1097 V. Conclusion ..................................................... 1100

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*1016 "Public law litigation"--civil rights advocacy seeking to restructure public agencies--has changed course over the last three decades. It has moved away from remedial intervention modeled on command-and-control bureaucracy toward a kind of intervention that can be called "experimentalist." Instead of top-down, fixed-rule regimes, the experimentalist approach emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency. Experimentalism is evident in all the principal areas of public law intervention--schools, mental health institutions, prisons, police, and public housing. This development has been substantially unanticipated and unnoticed by both advocates and critics of public law litigation. In this Article, we describe the emergence of the experimentalist model and argue that it moots many common criticisms of public law litigation. We further suggest that it implies answers to some prominent doctrinal issues, including the limits on judicial discretion in enforcing public law rights and the constraints entailed by separation-of-powers norms. Our interpretation understands public law cases as core instances of "destabilization rights"--rights to disentrench an institution that has systematically failed to meet its obligations and remained immune to traditional forces of political correction. It suggests reasons why judicial recognition and enforcement of such rights might be both effective in inducing better compliance with legal obligations and consistent with our structure of government.

I. Introduction Scorned when not forgotten, yet transformed by its travails, public law litigation is becoming -- again -- an influential and promising instrument of democratic accountability. In 1976 Abram Chayes argued that efforts to apply rule-of-law principles to the institutions of the modern welfare state had produced a new kind of litigation. [FN1] The "traditional" lawsuit involved two private parties and focused on allegations of a discrete past wrong implying a particular remedy, most often a one-time money payment from the defendant to the plaintiff. Chayes showed that an important category of civil rights litigation departed radically from this model. These *1017 "public law" cases involved amorphous, sprawling party structures; allegations broadly implicating the operations of large public institutions such as school systems, prisons, mental health facilities, police departments, and public housing authorities; and remedies requiring long-term restructuring and monitoring of these institutions. Chayes argued that the new litigation enriched the institutional repertory of our democracy. In his view, the independence, flexibility, and accessibility of the courts equipped them for the task of holding chronically underperforming institutions accountable to governing legal standards. Public law courts were less susceptible to capture by selfish interests and better able to induce fruitful discussion among the relevant parties than the administrative agencies that might otherwise have oversight responsibility. Although Chayes's analytic description of public law litigation became canonical, his defense of it remained controversial. Early critics doubted that courts had the necessary information to supervise institutional restructuring effectively. Even if the courts were sufficiently informed, these critics argued, their power seemed too narrow and too shallow for the new task: Too narrow because the problems of public agencies were

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linked to myriad other institutions and social practices, while a court's power extended only to the parties before it. Too shallow because the operations of the agencies depended on the street-level conduct of subordinates far below the court's view, while a court's direct remedial authority operated mainly against senior officials (and even then, only with severe limitations). [FN2] From the outset, the legitimacy of public law litigation was as suspect as its efficacy. For Chayes, such litigation would legitimate itself by solving public problems that other institutions of the administrative state could not. But many critics argued that even effective judicial intervention of this kind was often illegitimate. They emphasized, as Chayes had conceded, that these cases did not fit easily into traditional notions of the judicial role or the separation of powers. They doubted that conventional legal sources of authority and modes of analysis could be made to speak in any direct or determinate fashion to the task of devising remedies that restructured entire organizations. They argued that the courts could not undertake the restructuring of administrative agencies without trenching on the authority of the executive and legislative branches, and that federal courts could not superintend *1018 the restructuring of state and local agencies without compromising principles of federalism and local autonomy. [FN3] The United States Supreme Court and other appellate tribunals also expressed disapproval in a range of decisions designed to rein in trial court discretion in public law actions. [FN4] Legislatures passed statutes--most notably, the federal Prison Litigation Reform Act of 1996 (PLRA) [FN5]-- constraining the courts in these cases. Trial court judges who undertook structural relief in some high-profile cases threw up their hands in apparent exhaustion or despair, dissolving injunctions purportedly because all practicable vindication of the plaintiffs' rights had been achieved, even though little progress was detectable. [FN6] Even the liberal defense of Chayes's model took on an anxious tone. [FN7] Proponents struggled uncomfortably with the jurisprudential phenomenon of rights that did not come with ready-made remedies. They worried about how to limit judicial discretion and preserve the prestige of the courts. There was also increasing worry about the accountability of the advocates to their generally poor and ill-educated clients--the putative right holders. [FN8] Yet despite decades of criticism and restrictive doctrines, the lower courts continue to play a crucial role in a still-growing movement of institutional reform in the core areas of public law practice Chayes identified: schools, prisons, mental health, police, and housing. And while they have opposed some judicial interventions, legislatures have acquiesced in and even encouraged others. [FN9] There is no indication of a *1019 reduction in the volume or importance of Chayesian judicial activity. The particular forms of this activity, however, have evolved. The remedies of recent years are different in important respects from those that Chayes and his critics focused on. The evolution of structural remedies in recent decades can be usefully stylized as a shift away from command-and-control injunctive regulation toward experimentalist intervention. Command-and-control regulation is the stereotypical activity of bureaucracies. It takes the form of comprehensive regimes of fixed and specific rules set by a central authority. These rules prescribe the inputs and operating procedures of the institutions they regulate.

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By contrast, experimentalist regulation combines more flexible and provisional norms with procedures for ongoing stakeholder participation and measured accountability. In the most distinctive cases, the governing norms are general standards that express the goals the parties are expected to achieve--that is, outputs rather than inputs. Typically, the regime leaves the parties with a substantial range of discretion as to how to achieve these goals. At the same time, it specifies both standards and procedures for the measurement of the institution's performance. Performance is measured both in relation to parties' initial commitments and in relation to the performance of comparable institutions. This process of disciplined comparison is designed to facilitate learning by directing attention to the practices of the most successful peer institutions. Both declarations of goals and performance norms are treated as provisional and subject to continuous revision with stakeholder participation. In effect, the remedy institutionalizes a process of ongoing learning and reconstruction. Experimentalist regulation is characteristic of the "networked" and "multilevel" governance proliferating in the United States and the European Union--decisionmaking processes that are neither hierarchical nor closed and that permit persons of different ranks, units, and even organizations to collaborate as circumstances demand. [FN10] In cases that take the experimentalist approach, the courts are both more and less involved in reconstituting public institutions than they *1020 were when Chayes wrote. They are more involved because experimentalist remedies contemplate a permanent process of ramifying, participatory self-revision rather than a one-time readjustment to fixed criteria. But the courts are less involved because the norms that define compliance at any one moment are the work not of the judiciary, but of the actors who live by them. At least in prospect, the demands on the managerial capacities of the court, and the risk to its political legitimacy, are smaller in this continuous collaborative process than in top-down reform under court direction. To some extent, the experimentalist tendency has been responsive to constraints imposed by the Supreme Court. [FN11] Although key decisions of the Rehnquist Court sometimes seem unreflectively hostile to public law litigation, they are plausible in their demand that lower courts demonstrate stronger connections between the principles on which their determinations of liability are based and the specific means they impose as remedies. Yet beyond this general demand, the Court's guidance has been ambiguous and incoherent. [FN12] The experimentalist practice of the lower courts has gone far beyond anything suggested or anticipated in appellate doctrine. In this Article, we offer an interpretation of the evolving approach to public law intervention as a species of what we call "destabilization rights." [FN13] Destabilization rights are claims to unsettle and open up public institutions that have chronically failed to meet their obligations and that are substantially insulated from the normal processes of political accountability. The term focuses attention on a crucial common element of the claims in the various areas of public law litigation and on a dimension of the remedy that is critical to explaining the prospect of successful intervention. The effect of the court's initial intervention is to destabilize the parties' pre-litigation expectations through political, cognitive, and psychological effects that widen the possibilities of experimentalist collaboration. The regimes of standards and monitoring that commonly emerge from remedial negotiation allow this destabilization,

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and the learning it generates, to continue within narrower channels. *1021 In Part II we survey the major areas of public law litigation to illustrate the trend away from command-and-control approaches toward experimentalist ones. In Part III we elaborate the idea of destabilization rights and argue, against Chayes, that it points to an important continuity between public law litigation and traditional common law adjudication. Part IV shows how the destabilization rights idea relates to a series of issues that have preoccupied appellate doctrine, including the relation between right and remedy, the separation of powers, respondeat superior, and the problem of interest representation. In each case, we argue that the move to experimentalism suggests a resolution. Ultimately, our claims for the promise of the new approach remain as inconclusive as Chayes's. We end with the same cautious optimism he expressed in 1976, based, like his, on casual observation. We do, however, offer some ideas as to why the new approach might respond to the concerns that have dominated legal scholarship since he wrote. If our convictions are more firmly rooted than Chayes's, it is only because, in its recent development, public law has passed one critical test of a truly vital idea: it has managed to generate responses to questions that its proponents want to avoid and that its critics think unanswerable. [FN14]

II. The Protean Persistence of Public Law Litigation Here we survey the five principal areas of structural litigation over public services--education, mental health, prisons, police, and housing. In each we find indication of a growing and promising shift from command-and-control to experimentalist intervention. The command-and-control orientation has three characteristics: First, an effort to anticipate and express all the key directives needed to induce compliance in a single, comprehensive, and hard-to-change decree. Second, assessment of compliance in terms of the defendant's conformity to detailed prescriptions of conduct in the decree. These prescriptions tend to be process norms that dictate conduct as a means *1022 to the attainment of goals, rather than performance norms that directly mandate and measure goal achievement. And third, a strong directive role for the court or a special master in the formulation of the remedial norms. There has been a fairly clear and deliberate move away from the first two characteristics. History with respect to the third--judicial direction--is more ambiguous. Courts have encouraged negotiated remedies from the beginning. But judges and special masters appear to have been more directive in the past. [FN15] The change has not been strictly linear. Doubts about command-and-control appeared early, and some contemporary remedies continue to have a command-and-control quality. But the general direction and nature of the trend seems clear. A. Schools [FN16] There have been three successive waves of public law litigation concerning schools. [FN17] The first consisted of federal desegregation suits. The second involved challenges in the state courts to the equity of school finance systems. The third continues efforts in the state courts but shifts the normative focus from "equity" to "adequacy." The shift from top-down, rule-based remedies to decentralized, standards-based intervention is an important theme of this evolution.

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The best-known body of public law litigation is the Herculean effort of the federal courts to desegregate the nation's public schools. These efforts met with some early success in a few states, but massive resistance stalled them in the South until Congress passed the Civil Rights Act of 1964. Thereafter, especially between 1968 and 1972, the federal courts oversaw the successful dismantling of segregation in schools attended by millions of children through lawsuits brought by private plaintiffs and by the federal government. Most of these schools were in countywide districts in the rural South. [FN18] *1023 Outside the rural South, however, desegregation was impeded by the combination of local school control and residential mobility. To establish liability, plaintiffs had to prove that school segregation resulted from official conduct rather than from residential self-segregation by individual choice. Issues of intention and causation were complex, the standards were vague and inconsistent, and the range of potentially relevant evidence was enormous. A policy patently intended to cause segregation and effective in doing so would readily establish liability. In the more common case, however, where officials did not express racist intentions, policies were facially neutral, and their consequences were ambiguous, the going was harder. Even when liability was established, doctrine generally confined the courts' remedial powers to official conduct within the district. Where the district was residentially segregated, or where whites would respond to remedial efforts by fleeing, options were severely restricted. Since the late 1970s, a sense of fatigue and futility has hung over large-scale desegregation efforts. [FN19] A second line of school cases has focused on fiscal equity. Although the United States Supreme Court rejected the claim that the federal Equal Protection Clause limits inequality in state school finance, [FN20] many state courts have struck down school finance systems under state constitutional provisions. In total, the courts of about half the states have held school finance systems unconstitutional. [FN21] Although equalization of funding is a less daunting remedial task than desegregation in a residentially segregated region, implementation of school finance equity remedies has also met with difficulties and disappointments. Some states, most notably California, seem to have moved toward equality by leveling down--increasing relative contributions to poorer districts but limiting overall support for the school system. [FN22] In *1024 other states, increased funding has not made a discernible difference in the performance of poorer districts. [FN23] In both the desegregation and fiscal equity cases, the courts have felt compelled to address issues of educational quality. The premise of Brown v. Board of Education was that segregation was bad--not only in itself, but also because it made for bad education. [FN24] Desegregation, conversely, was expected to produce better education. Where desegregation appeared unattainable, direct educational improvement seemed an appropriate alternative remedy. Moreover, to the extent desegregation required inducements to whites to remain voluntarily in urban public schools, direct quality improvements could supply them. Thus, the logical link between desegregation and quality ran in both directions. Remedial practice evolved along with these substantive developments. The implementation of desegregation pushed the courts toward extensive oversight of school administration. Concern for pupil assignment followed directly from the

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concern with integration. Given the strong connection between race and residence, and the tradition of local school attendance, the courts could not ignore siting decisions for new schools. The courts also had to make efforts to ensure that minority children were not mistreated or tacitly disadvantaged in new schools by, for example, excessive discipline or failure to discipline others who harassed them. Moreover, since minority students would likely be more at ease in a school with minority teachers, personnel policies became relevant. Once the courts saw improving educational quality as a remedial goal, almost every aspect of education policy was potentially relevant. When defendants were recalcitrant, the courts tended to increase both the scope and the detail of their orders. Thus, consent decrees often took the form of highly detailed regulatory codes embracing vast provinces of administration. [FN25] *1025 The concern with quality is most prominent in the third wave of cases. These are state cases of recent years, based not (or not only) on equality norms, but on provisions of a sort found in most state constitutions requiring "an adequate public education," [FN26] "a thorough and efficient system of free schools," [FN27] or "an educational program of high quality." [FN28] In these cases, the state's failure to meet norms of minimal quality and efficacy is the focus of the plaintiff's claim. [FN29] Where courts have found liability in these cases, legislatures have responded with both funding and structural support, though frequently not to the satisfaction of the courts or the parties. These judicial efforts have sometimes converged with extensive civic activity around educational reform. In Kentucky and Texas, for example, lawsuits drew on the activities of politically appointed commissions of business, professional, and civic leaders. [FN30] Civic participation in the remedial phase of school reform litigation is not new, but it seemed to assume greater prominence in both practice and theory in the 1990s. Picking up a theme from our colleague Susan Sturm, counsel in the New York school finance case argued in 1996 that the widespread involvement of parents, teachers, business, and civic groups in the formulation and implementation of remedies was critical to the success of these suits. They proposed a "dialogic" model of reform in which remedies emerge from deliberation among the widest feasible range of stakeholders. [FN31] The remedial regimes in the more ambitious of these new public law cases do not involve the comprehensive sets of regulatory instructions of the sort found in many urban desegregation cases. The new regimes do not contemplate judicial micromanagement or administrative centralization. Helen Hershkoff described one of these decrees, from an Alabama case, as "establishing a structure for institutional reform, *1026 and [yet] not fixing the precise content of [the] reform." [FN32] Instead of directing specific action, the decrees elaborate goals and methods of monitoring achievement. These more ambitious regimes have been influenced by the "new accountability" movement in educational reform. That movement results from the interaction of both centralizing and decentralizing developments. The centralizing theme emphasizes the importance of comparative performance measurement and material incentives. The decentralizing theme prescribes devolution of authority for classroom instruction away from national and state administrators toward districts, principals, and teachers (and sometimes parents). The combination of standards-based monitoring and local discretion is designed to reconcile systematic accountability with local authority.

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[FN33] The Texas regime is one of the more fully developed along these lines. In 1989 the Texas Supreme Court declared the state's school system out of compliance with various provisions of the state's constitution, including the requirement that the state provide for an "efficient [school] system" and the "general diffusion of knowledge." It subsequently rejected two legislative packages enacted specifically to fix the problems. Then in 1995 the court provisionally accepted a new statutory scheme increasing funding and creating the Texas Public School System Accountability scheme. [FN34] The statute put the state's Board of Education in charge of the system. The Board is charged with designing "assessment instruments" to test student knowledge in basic subjects and skills and with administering them at specified points in students' careers. Schools are obliged to plan and target resources specifically to improve the performance of their lowest-scoring students, regardless of their race. Under the Texas scheme, schools and school districts are assessed annually on the basis of both test scores and other indicators, such as dropout and graduation rates, attendance rates, SAT scores, and completion of advanced courses. Relative performance is measured against a group of peer schools with comparable characteristics in *1027 terms of such indicators as "past academic performance, socioeconomic status, ethnicity, and limited English proficiency." Outstanding performers are identified and rewarded. Laggards must, with the help of outside technical assistance, develop detailed improvement plans. In the case of continued poor performance, such schools are put into state receivership or reconstituted. [FN35] The Texas process is substantially transparent, with school and district ratings and related information available on the Internet. Parents receive "report cards" on their children's schools through the mail. The state supreme court cases provoked substantial mobilization by business and civic groups. At least in some areas, it appears that the reforms have prompted extensive local parental involvement in school affairs. [FN36] The new accountability approach is widely regarded as the most promising recent development in public school reform. Some jurisdictions have adopted related initiatives without judicial compulsion. [FN37] Although it is too soon to claim that the judicial efforts along this line have been successes, there are several jurisdictions where the courts remain key participants in the most ambitious reform efforts. Finally, we note that trends parallel to those seen in these general education initiatives are evident in the subfield of special education for students with disabilities. The federal Individuals with Disabilities Education Act [FN38] and various state statutes create duties to refrain from discrimination against disabled students, to make affirmative accommodations for them, and to respond to requests for services on their behalf in accordance with prescribed procedures. Here, too, early structural reform litigation seems to have taken on a command-and-control orientation involving elaborate rule-bound administrative regimes focused on such matters as the timeliness of processing student evaluations, the number and qualifications of personnel, and student placement practices. Practitioners subsequently became dissatisfied with what some characterized as the "input-oriented" approach in both *1028 judicial and administrative oversight. [FN39] In the spirit of the new accountability approach in general education, the 1997 amendments to the federal special education statute required states to set achievement goals and to measure progress with standardized

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tests. [FN40] The emerging "output-oriented" perspective is evident in Vaughn G. v. Mayor and City Council of Baltimore. In 2000, when the case was nearly two decades old, the parties agreed that the complexity of the decree hampered both enforcement and renegotiation efforts. Noncompliance was pervasive, and both plaintiffs and defendants were mired in arguments over small details that distracted them from their central goals. They thus agreed to replace their detailed "Long Range Compliance Plan" with a "Consent Order Approving Ultimate Measurable Outcomes." The six-page order prescribes sixteen outcomes and specifies procedures for measuring progress toward attaining them. Some of the outcomes involve data collection and monitoring systems for performance measurement; others involve procedural norms, and here, compliance rates are specified (for example, the order requires ninety-five percent compliance with application processing deadlines). The other outcomes Vaughn G. prescribes concern educational goals. For example, the defendants committed to increase school completion rates for disabled students from fifty percent to fifty-seven percent within three years, to increase the participation of disabled students in vocational programs to the same rate as that of nondisabled students, and to provide at least eighty percent of disabled students with required services in the schools they would attend if they were not disabled. These norms were derived from statewide data on special education performance, with negotiated adjustments. The defendants' performance under the new approach has been mixed, but it seems to have improved, and the plaintiffs find that their own monitoring efforts are more focused. [FN41] *1029 B. Mental Health Mental health is probably the least controversial category of institutional reform litigation. To be sure, the characteristic judicial experience in this realm has involved the same delay, frustration, and recalcitrance that have plagued efforts in other areas. But at least moderate success is widely conceded in several cases involving developmentally disabled clients. Coincidentally or not, the evolution with which we are concerned--from command-and-control intervention to decentralized and indirect intervention--is especially marked and self-conscious in these cases. The contours of mental health institutional litigation were shaped by two converging developments. The first was the emergence of a legal doctrine recognizing the rights of people involuntarily confined on grounds of mental disability to treatment and decent conditions. Beginning in the 1960s, the courts articulated such rights as a matter of constitutional law. These rights were elaborated further in state and federal legislation. Congress specifically authorized the Department of Justice to bring suits against mental health institutions in the Civil Rights for Institutionalized Persons Act of 1980, and the Department has done so, with less zeal than activists would like but considerably more than it has shown in the case of prisons. Procedural barriers of the sort created by courts and legislatures for prison litigation have generally not arisen in the mental health field. [FN42] The second development was the deinstitutionalization movement. The intellectual origins of this movement are in the treating professions. Reformers argued that most mentally disabled people held in large, public institutions would fare better as

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outpatients or as residents of small community facilities. Institutionalization limited the range of their personal associations and activities in ways that were stifling and oppressive, and hence impeded rehabilitation. More integration into normal social life would have therapeutic advantages. Small, community-based facilities might be more accessible to formal and informal monitoring by relatives and advocacy groups than large, isolated ones. [FN43] The professional critique of institutionalization meshed with the libertarian impulse of the legal doctrine on confinement. Liberal lawyers argued for a right to the "least restrictive" efficacious intervention. This meant that institutionalization was impermissible when community placement was adequate or better. Although the Supreme Court *1030 never fully accepted this principle as constitutional law, statutory and regulatory support for it did emerge. [FN44] Strong fiscal incentives also supported deinstitutionalization. The 1970s were a time of fiscal pressure, and even the shabbiest mental health institutions were expensive. The prospect of savings from closing them was appealing to state and local governments. [FN45] The move to community facilities had a natural affinity with decentralized, indirect administrative structures. Although public agencies sometimes created and managed their own community facilities, more often they looked to nongovernmental social service agencies or for-profit providers to do so. Even administrators wedded to command-and-control models within government did not think them applicable to public subcontracting of services. As Ronald Wisor put it: [The move to community facilities] dramatically transforms the government's function from provider to guarantor of care. In this new role, the state's primary responsibility is to establish detailed quality control standards as the basis for the provider contracts, and then to monitor performance closely to ensure that those standards are followed. [FN46] Thus, the mental health cases focused on two kinds of reforms: First, as long as the large public institutions remained open, the courts sought to bring them into compliance with minimum standards of safety, sanitation, humane conduct, and effective medical treatment. Second, courts sought to gradually replace these institutions with community care facilities. The change in remedial orientation from old to new public law can be seen both within the efforts to change the older institutions and in the shift to the community care model. The command-and-control orientation is evident in the decrees in two of the most famous mental health cases--Wyatt v. Stickney, [FN47] which addressed Alabama's institutions for the psychiatrically and developmentally disabled, and New York State Ass'n for Retarded Children v. Carey, [FN48] which involved the Willowbrook institution for the developmentally disabled in New York City. Each decree declared many rights and duties in general terms, such as a patient's right to "privacy" and a duty to provide "adequate" medical care. Each also incorporated, by reference, the presumably changing standards promulgated by organizations with relevant expertise. For example, the *1031 Alabama decree required a diet meeting nutritional standards prescribed by the National Academy of Science. As to a broad range of matters, however, the decrees dictated directly and specifically. The Wyatt decree, for example, mandated at least one toilet for every eight patients, no

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more than six patients in a bedroom, at least eighty square feet of floor space per patient in each bedroom, at least ten square feet of space per person in the dining room, air temperature between eighty-three and sixty-eight degrees Fahrenheit, hot water at 110 degrees, and minimum staff-patient ratios for thirty-five job categories. [FN49] Five years after the entry of this decree, the defendants petitioned for modification, claiming that the court-ordered procedures were excessively rigid. Various recordkeeping and monitoring procedures, they asserted, were "ritualistic and meaningless." Moreover, many of the treatment standards proved senseless. For example, the requirement of six hours of training per day for each resident was inappropriate for some profoundly retarded residents (who came to constitute the majority of inmates as less disabled residents were transferred to community placements). These patients had shown no capacity to benefit from such extensive training, and it sometimes became an unpleasant and demeaning experience for them. The court denied the motion, however, holding that the provisions in question, including the six-hour training requirement, were essential to the "constitutional right" of each resident to effective treatment. [FN50] In the Willowbrook case, the defendants fought successfully against many specific requirements [FN51] but accepted some restrictions that were important to the plaintiffs. One of the latter provisions proved especially contentious. The consent decree required that mildly retarded members of the plaintiff class be transferred to community placements with no more than fifteen beds and that members with more severe disabilities be transferred to placements with no more than ten beds. A few years later, the defendants asked the court to modify the decree to permit patient transfers to facilities with as many as fifty beds. They argued that small community facilities had proven harder to develop than anticipated and that the therapeutic benefits of the larger settings were comparable. Like its counterpart in Alabama, the federal district court in New York denied the request, but its decision was reversed on appeal by the Second Circuit. The circuit court cited a recent*1032 Supreme Court opinion suggesting that treatment consistent with "professional judgment" was sufficient for constitutional purposes, and rejecting a claim of a right to the least restrictive alternative. [FN52] However, the court relied equally on the principle of deference to administrative officials on matters within the scope of their discretion. [FN53] In some respects, the Wyatt defendants probably had the better argument. The Wyatt court's refusal to modify its order in light of experience seems to have reflected its strong distrust of the defendants more than any view of the merits. Conversely, the Second Circuit's insistence on deference a decade later seemed based mainly on anxiety that courts were being drawn into institutional micromanagement and resolution of public policy issues over which they had no distinctive expertise. Recent public law cases in mental health forego this type of specification in favor of more indirect modes of control. The decrees emphasize broad goals and leave the defendants substantial latitude to determine how to achieve them; mandate precise measurement and reporting with respect to achievement; and institutionalize ongoing mechanisms of reassessment, discipline, and participation. The recent decree in a long-pending challenge to conditions at the District of Columbia institution for the mentally disabled is illustrative of this trend. The "Compliance Plan"

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negotiated by the parties and approved by the court specifically eschewed "detailed prescriptions of . . . policies and procedures and staff training." Instead, it adopted [a]n alternative approach . . ., where the parties and experts that they recommend, have a meaningful opportunity to provide input into proposed policies and training initiatives prior to their adoption and . . . the defendants give careful consideration to such input. In each section of the Plan where a need for new or revised policies and procedures is identified, the Plan requires that the process of policy-making will involve close collaboration with the plaintiffs and the plaintiff-intervenor [the U.S. Department of Justice], and experts whom they recommend, prior to the adoption of these policies and procedures. However, the final decision about the policies and procedures and training programs will remain with the defendants, understanding that if they fail to address serious concerns raised by the plaintiffs and the plaintiff-intervenor, this may result in compliance issues down the road. In the final analysis, it is compliance with the specific outcome criteria that is required . . . and the tasks identified are a means to this end. [FN54] *1033 The plan consists of a series of generally stated "goals" (for example, "Appropriate Individualized Habilitation and Treatment in the Community in the Least Separate, Most Integrated, and Least Restrictive Setting"). Each goal is followed by a series of specific "tasks" (for example, preparing individual service plans at least annually for each patient) and "outcome criteria" (for example, that the patient receive the services identified in the individual service plan). The plan then specifies the "method of assessing compliance" for each set of outcome criteria. Compliance with the service provision goal is to be assessed by review of a computerized database of individual service plan information, documents regarding complaints, direct observation of a random sample of ten percent of the patients in the programs, and interviews with case managers and advocates. These plans, as elaborated, do not consistently live up to their rhetorical commitment to focus on "outcomes." An outcome is something desirable in itself, such as psychic well-being, physical health, or living skills. Often, however, the plans do not seek to measure these desiderata in the way that the new school regimes try to measure learning. The "outcomes" the mental health plans measure are really procedures. The D.C. plan, for example, measures whether services have been appropriately prescribed and provided in accordance with that prescription, not whether the services have actually improved the life of the recipient. It is a matter of controversy whether this hesitation reflects the difficulties of devising true outcome measures in this field, or the failure of practitioners to appreciate the full potential of the approach they have embraced in principle. [FN55] In any event, even in its compromised form, the intent and effect of such plans is to reduce reliance on specific ex ante rules. The D.C. plan institutionalizes short-run participation of the plaintiff class through periodic meetings with the defendant officials conducted by a special master, or "Independent Court Monitor." It also creates a permanent institution designed to facilitate accountability to patients and their families. This institution is a freestanding nonprofit corporation, the Quality Trust for Individuals with Disabilities. The District committed to endow the Quality Trust with $11 million at the outset and to provide it with between $1.5 to $2 million a year for ten *1034 years. The board of the trust was appointed by the mayor from a list jointly developed by the parties, and subsequent vacancies are to be filled by a vote of the remaining incumbents. The trust has a broad

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mandate to monitor the District's programs for the developmentally disabled and to advocate on behalf of patients. This includes the power to take the District to court. Most important, the trust has broad access to information on the performance of the District's programs for the developmentally disabled. Such judicial interventions seem to have made a difference for the better. Horrific conditions in many custodial institutions have been ameliorated, and many patients have been transferred to community facilities that offer improved conditions and are subject to promising monitoring regimes. [FN56] To be sure, no case has come close to fulfilling the hopes of those who brought it, and the public mental health system remains plagued by disastrous failings. Many of those formerly incarcerated in large institutions have been released into the community without adequate shelter or care. Some have simply been abandoned, others left at the mercy of poorly monitored or underpaid subcontractors. It would be unfair, however, to blame these failings on institutional reform litigation. C. Prisons Challenges to the Arkansas prison system in 1969 and the Texas system in 1972 inaugurated a period of massive judicial intervention in *1035 the nation's prisons and jails. Prison conditions in forty-one states were held unconstitutional, as were conditions in hundreds of jails throughout the country. In ten states, Malcolm Feeley and Edward Rubin report, judicial intervention was "directed at virtually every aspect of every institution in the state." They continue: [F]ederal courts ended up promulgating a comprehensive code for prison management, covering such diverse matters as residence facilities, sanitation, food, clothing, medical care, discipline, staff hiring, libraries, work, and education. The decisions themselves, and often the resulting body of law, specify many requirements in what can be described, depending on one's perspective, as painstaking or excruciating detail; the wattage of the light bulbs in the cells, the frequency of showers, and the caloric content of meals are all part of the code that the federal courts have promulgated. [FN57] The implementation phase of many of these cases has lasted for decades. On the whole, these cases seem to have spurred significant improvement. Especially in the harshest systems in the South, intervention has led to the elimination of the routine or authorized use of torture; to the abandonment of convict-leasing, inmate "trusties," and other managerial structures with high potential for abuse; to personnel, training, and supervisory changes that professionalized management; and to modest improvement, at least, in the physical amenity of confinement. Although many of the institutions are still foul and dangerous places, they are better than they used to be in many ways. [FN58] Reform was assisted in some respects but hampered in others by the fact that it occurred amidst a policy-induced explosion of the prison population. On the one hand, the upheaval created by rushed expansion opened the system to change. It meant an influx of new personnel and created pressure, independent of the plaintiffs' demands, for more effective managerial structures. On the other hand, expansion and upheaval also increased fiscal pressures. The reformers had to find resources to fund improvements for current prisoners at a time when the system was expanding to accommodate additional ones.

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Writing in 1990, Susan Sturm found some indications of a shift away from command-and-control and toward experimentalist regulation (or what she called the "catalyst approach"). [FN59] She pointed to cases in Hawaii and Pennsylvania in which courts, instead of imposing comprehensive sets of specific rules, ordered the parties and their experts *1036 to formulate general performance standards and then to set up monitoring bodies with substantial accountability to the plaintiffs. [FN60] At about this time, a movement to privatize prison services got underway. This movement involved subcontracting practices analogous to those in the mental health field, though their scale was more modest. Such efforts most commonly concerned low-security, service-intensive facilities, such as halfway houses or pre-release centers, or medical services in secure institutions. Subcontracting sometimes led to standard-setting and monitoring practices like those in mental health institutions. It freed some ambitious administrators from the rigidities associated with civil service rules, union practices, and a workforce immured in convention. According to J. Michael Keating, Jr., some administrators viewed subcontracting as "an opportunity not only to identify and clarify goals, but also to create incentive structures designed to promote the attainment of these goals." [FN61] (Of course, if unsupervised by public authorities, privatization also opens the way to abuse.) Such efforts increased support for emerging national accreditation processes, especially those of the American Correctional Association and the National Commission on Correctional Health Care of the American Medical Association. [FN62] A further development was the formation in several states, through legislative or administrative initiative, of administrative bodies to monitor prisons. Typically, such bodies operate both by responding to grievances and through proactive auditing. Injunctive remedies in *1037 lawsuits sometimes also provide for the creation of these monitoring bodies. [FN63] These efforts were never as ambitious as the comparable initiatives in education and mental health. There is, of course, much stronger public resistance to participation in policymaking and administration by prisoners and their advocates than by mental health patients and their advocates, and a fortiori, by parents of schoolchildren. And the natural resistance of administrators to public disclosure of performance data has been less subject to challenge in the prison sphere. A powerful backlash against judicial intervention developed in the late 1980s. Since then, Supreme Court cases and congressional enactments have prescribed deference to administrative expertise and have insisted that judicial intervention be narrowly circumscribed. For example, one Supreme Court case reversing lower court prison injunctions vehemently condemned the level of detail (as well as the scope) of an injunction regarding prison libraries: It specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minimal educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates . . ., and similar matters. [FN64] All the Justices agreed that this went too far. In 1996, Congress stepped in and enacted the Prison Litigation Reform Act, which imposed an array of procedural restraints on such litigation in the federal courts. [FN65] As in the mental health field, appellate*1038 courts became increasingly

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intolerant of lower court orders that imposed detailed restrictions, such as minimum space requirements, or restrictions only indirectly related to the legal violations, such as training or staffing requirements. [FN66] Despite a growing number of legal and political constraints, however, the volume of prison litigation remains substantial, and although structural orders tend to be narrower than in the past, they are still common. [FN67] Among these structural orders, at least some seem to have moved toward more experimentalist modes of intervention. Consider Sheppard v. Phoenix, [FN68] a challenge to use-of-force practices in maximum security units of the New York City jails. In 1998, the parties entered a settlement obligating the Department of Corrections to develop and implement new policies under the guidance of two designated experts with extensive prison reform experience and within broad parameters set out in a 104-paragraph "stipulation." In its report on the implementation process, the court noted that "the Stipulation . . . was implemented to achieve its goals, not to restrict it to its exact terms." [FN69] Although the Department adopted extensive written policies, the court's report emphasized the process of ongoing revision, training, and monitoring, not the specifics of the policies. Monitoring efforts included an improved inmate grievance system, handheld videotaping of anticipated uses of force, cameras mounted in secluded places where incidents were likely to occur, detailed reporting and investigation procedures for each incident, and oversight by the Department's Inspector General, an officer independent of the staff line of authority. As problems *1039 were disclosed, policies were revised. For example, incident reports showed that a large number of violent altercations between inmates and guards arose from inmate refusals to close food slots. These refusals, often accompanied by shouting, were considered disruptive and frequently prompted the guards to enter the cells to force compliance. Inquiry disclosed that these inmates were often protesting failures to address legitimate demands for services. The Department responded by providing training for guards on the appropriate reaction to service requests and by assigning social services counselors to the unit. Inmates who repeatedly refused to close their boxes were placed in specially designed cells that minimized inmate-guard contact. [FN70] The court based its dismissal of the stipulation on measured performance improvement. Measures included the number of injuries, the number of use-of-force incidents, the processing times for investigations and disciplinary charges against guards, and guard sick days and worker's compensation claims (which the court treated as a proxy for both physical welfare and morale). [FN71] The court talked only about the internal trend. It made no comparative assessment and did not explain why the current scores should be deemed adequate. Nonetheless, it is clear that the court defined compliance by performance in relation to basic goals, not by conformity to rules. While agreeing that the jails had made important progress, plaintiffs' counsel in Sheppard have pointed to areas where compliance has lagged. The specificity of their criticisms demonstrates, however, that the monitoring system already in place is sufficiently informative to guide further reforms. Plaintiffs' counsel can, for example, document a tendency for use-of-force incidents to rise when new staff arrive, leading them to recommend changes in the training and supervision of recruits. They can also attribute specific reporting failures to specific personnel and monitor the sanctions applied for violations of the decree. [FN72]

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